Sheffield & Almond

Case [2024] FedCFamC1F 785

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sheffield & Almond [2024] FedCFamC1F 785

File number(s): SYC 855 of 2016
Judgment of: BOYLE J
Date of judgment: 22 November 2024 
Catchwords:

FAMILY LAW – CHILDREN – Where the proceedings concern one child aged 11 years - Where final orders were made in 2020 which provided for the child to live with the father and spend time with the mother – Where the mother’s time with the child was suspended in circumstances where she removed the child from the care of the father on two occasions – Where the mother was charged and received a custodial sentence with respect to her retention of the child – Where the mother has spent limited time with the child since 2020 – Where the issue in dispute is what time, if any, the child should spend with the mother – Consideration of the child’s views.

FAMILY LAW – HARMFUL PROCEEDINGS - Where the parties have been involved in litigation since 2016 – Where the father and Independent Children’s Lawyer seek an order be made restraining the mother from instituting further proceeding without leave – Where the court finds that the child would suffer psychological harm if further proceedings are instituted by the mother – Where an order is made pursuant to s 102QAC(1) of the Family Law Act 1975 (Cth).

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 69ZT, 102NA, 102QAC
Cases cited:

Carey & Prescott (No 2) [2024] FedCFamC1F 512

Isles & Nelissen (2022) FLC 94-042

M v M (1988) 166 CLR 69; [1988] HCA 68

Division: Division 1 First Instance
Number of paragraphs: 118
Date of hearing: 5-7 November 2024
Place: Sydney
Counsel for the Applicant: Mr Scarlett
Solicitor for the Applicant: White Hat Lawyers
Counsel for the Respondent: Mr Ang
Solicitor for the Respondent: John Stonham & Co
Counsel for the Independent Children's Lawyer: Mr Blackah
Solicitor for the Independent Children's Lawyer: Marsdens Law Group

ORDERS

SYC 855 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ALMOND

Applicant
AND:

MR SHEFFIELD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BOYLE J

DATE OF ORDER:

22 NOVEMBER 2024

THE COURT ORDERS THAT:

1.All previous Orders are discharged.

2.The child X born in 2013 (“X”) shall live with the father.

3.The father is solely responsible for making decisions regarding X’s long term care, welfare and development.

4.The mother is permitted to send cards, letters, presents and emails to X, and the father shall do all acts and things to ensure such correspondence is received by X and X has the opportunity to respond by post or email should she so wish.

5.In the event X expresses a desire to communicate with the mother, spend time with the mother, send cards and/or gifts to the mother or engage in family therapy, the father shall do all acts and things to facilitate X engaging in this time, communication or therapy.

6.Pursuant to s 102QAC(1) of the Family Law…

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Sheffield & Almond [2024] FedCFamC1F 785
Case
[2024] FedCFamC1F 785
Decision Date

CaseChat Overview and Summary

The case of Sheffield & Almond involved proceedings concerning an 11-year-old child, X, who was born in 2013. The primary dispute in the case was the determination of the time X should spend with her mother, Ms Almond, following final orders made in 2020 that allowed X to live with her father, Mr Sheffield, and spend increasing time with Ms Almond. The mother’s time with X was suspended due to her removing X from her father's care on two occasions, leading to her being charged and receiving a custodial sentence. Since 2020, Ms Almond has had limited contact with X. The court was also required to consider whether to restrain Ms Almond from instituting further proceedings without leave due to the potential psychological harm to X.

The court identified several key issues. Firstly, it needed to determine whether X should have any contact with Ms Almond and, if so, the nature and extent of that contact. Secondly, the court considered the application for a restraining order against Ms Almond to prevent her from initiating further proceedings without leave. The court examined the evidence and arguments presented by both parties, the Independent Children’s Lawyer, and Ms Almond’s admissions. The court found that the child would suffer psychological harm if further proceedings were instituted by Ms Almond, thereby justifying the restraining order.

In its reasoning, the court highlighted the detrimental effect of prolonged litigation on X and acknowledged the importance of stability and finality in her life. The court determined that X should continue to live with her father and that he should have sole decision-making authority for major long-term issues. Regarding contact, the court allowed for limited, supervised communication between X and her mother, with the father facilitating this contact if X expressed a desire to engage. The court also found that restraining Ms Almond from instituting further proceedings without leave was necessary to protect X from potential psychological harm, thus making the order under section 102QAC(1) of the Family Law Act 1975 (Cth).

The court issued orders discharging all previous orders, granting sole parental responsibility to Mr Sheffield for making decisions regarding X's care, welfare, and development. X was to continue living with her father, with the mother permitted to send cards, letters, presents, and emails to X, facilitated by the father. If X wished to communicate or spend time with her mother, the father was to facilitate this. Additionally, Ms Almond was prohibited from instituting proceedings against Mr Sheffield without leave, and a Registrar was to notify Mr Sheffield if Ms Almond applied for such leave and the application was dismissed.

Orders

Orders of the court

SYC 855 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ALMOND

Applicant

AND:

MR SHEFFIELD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BOYLE J

DATE OF ORDER:

22 NOVEMBER 2024

THE COURT ORDERS THAT:

1. All previous Orders are discharged.

2. The child X born in 2013 (“X”) shall live with the father.

3. The father is solely responsible for making decisions regarding X’s long term care, welfare and development.

4. The mother is permitted to send cards, letters, presents and emails to X, and the father shall do all acts and things to ensure such correspondence is received by X and X has the opportunity to respond by post or email should she so wish.

5. In the event X expresses a desire to communicate with the mother, spend time with the mother, send cards and/or gifts to the mother or engage in family therapy, the father shall do all acts and things to facilitate X engaging in this time, communication or therapy.

6. Pursuant to s 102QAC(1) of the Family Law Act 1975 (Cth) (“the Act”) the Respondent mother Ms Almond is prohibited from instituting proceedings under the Act against the Applicant Mr Sheffield (“Applicant”) without the leave of the Court under s 102QAG of the Act.

7. Pursuant to s 102QAC(7) of the Act, in the event the Respondent mother Ms Almond makes an application under s 102QAE of the Act for leave to institute proceedings against the Applicant, a Registrar of this court is to notify the Applicant if the application is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

There is no dispute that X should continue to live with her father, and that he should have decision making authority for major long term issues. The major issue is whether X should spend time or communicate with the mother.BACKGROUND The parties commenced cohabitation in 2006 and married in 2006. X was born in 2013. The parties separated on a final basis on 29 November 2014. X lived with the mother following separation. X spent time with the father as agreed between the parties. On the day of separation the father was served with an interim Apprehended Domestic Violence Order (“ADVO”) for the protection of the mother against the father. In early 2015, the mother withdrew the interim ADVO. In 2015, the mother re-married. In 2016, the father re-married. He and his wife have two children aged seven and five. In early 2016, the mother relocated to Town B with X. She did not inform the father of her intention to do so. On 29 February 2016, the father commenced proceedings. Interim orders were made for X to live with the mother and spend time with the father two nights per fortnight. On 13 October 2016, orders were made requiring the mother to return X to live in the Sydney metropolitan area. The mother returned with X to Sydney in mid-2017. In early 2017 the father was served with an interim ADVO. In mid-2017 the ADVO was withdrawn by NSW Police. In early 2017 the father was contacted by the Town GG Child Abuse Squad about allegations that he had sexually abused X. No further action was taken about the allegations. The mother admitted during the hearing of parenting matters in this court that she falsified the allegations. On 10 May 2017, interim orders were made by consent for X to live with the parties in a week about arrangement. On 2 November 2018, interim orders were made by consent following a 10 day contested final hearing. The orders provided for the father to have sole parental responsibility for X, that she live with the father, and spend no time with the mother for a period of three months. Thereafter, X spend time with her mother each Saturday provided she engaged in personal therapy. On 12 July 2019, interim orders were made by consent for X to spend time with the mother from Friday until Saturday each alternate week. On 20 February 2020, final parenting orders were made following a five day contested hearing. The orders provided for the father to have sole parental responsibility for X, that X live with him and spend increasing time with the mother. The end point of time arrangements was six nights each fortnight. On 20 October 2020, the mother failed to return X to the father’s care in accordance with the orders. A recovery order was made on 5 November 2020. In late November 2020, X was located by the police and returned to the father’s care. In December 2020, the mother removed X from her school in company with five people. The mother relied on a document that purported to be a court order for the mother to take X into her care. That document was false. On the following day, X was returned to the father’s care by the police.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The mother seeks an order that the father be restrained from discussing the family law or criminal proceedings with X. On the evidence the father has not sought to influence X against her mother, nor inappropriately engage her in proceedings. There is no evidence to support an order that his parenting of X should be managed in this way by order of a court. I do not propose making the order sought.CONCLUSION Proceedings commenced between these parties in 2016. Litigation has been a feature of X’s life since then to date. It is hoped that these reasons and orders will bring the matter to finality, so that X can deal with the challenges of high school and adolescence without the burden of her parents being embroiled in further litigation.

Ratio Decidendi

Legal Principle Established

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